2011 MBPC 64, 2011 MBPC 64

Citation No. 2011 MBPC 64 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Joyce Dalmyn, for the Crown ) - and - ) ) Sidney Johnston ) Sarah Inness, for the Accused ) ) Judgment delivered: ) October 3, 2011 Carlson, P.J. Introduction [ 1 ] The accused Sidney Johnston (“Mr. Johnston”) is charged that on September 4, 2010, near Portage la Prairie, Manitoba, he operated a motor vehicle while disqualified from doing so, contrary to section 259(4) of the Criminal Code . [ 2 ] Section 259(4) sets out a hybrid offence. The Crown elected to proceed against Mr. Johnston summarily. [ 3 ] Mr.

Johnston’s trial took place on July 7, 2011. The Evidence [ 4 ] The Crown called one witness, R.C.M.P. Constable Sheldon Verspeek. [ 5 ] Mr. Johnston did not call any evidence and elected, as is his right, not to testify. The Order of Prohibition [ 6 ] An Order of Prohibition was entered into evidence as Exhibit 1. That Order, dated January 15, 2009, prohibited Mr. Johnston from operating a motor vehicle in Canada, for a period of two years. The Order was made on his conviction for an offence committed under s. 253(1) (

b) of the Criminal Code . The Order contains an acknowledgement, signed by Mr. Johnston on January 15, 2009, that it had been read or explained to him and that he understood its terms and conditions and the consequences of violating the Order. No evidence was provided to suggest Mr. Johnston did not have knowledge of his driving disqualification on September 4, 2010. The Evidence of Constable Verspeek [ 7 ] Constable Verspeek’s evidence was straightforward.

I find him to be a credible witness and accept his evidence. [ 8 ] At about 8:50 a.m. on September 4, 2010, Constable Verspeek observed a green 1998 Chevrolet vehicle bearing Manitoba licence plate number BMU 458, being operated on a rural road near Portage la Prairie, Manitoba. Constable Verspeek checked the licence number on a police data base, and determined that the registered owner of the vehicle was suspended from driving. He accordingly conducted a traffic stop. The driver, who he identified in court as being Mr. Johnston, was not able to produce a driver’s license.

Constable Verspeek did a data base check, and accessed a picture of the registered owner of the vehicle, who had a conviction for an impaired driving charge. The likeness in that picture matched the individual he was dealing with. [ 9 ] Constable Verspeek arrested Mr. Johnston for driving while disqualified. He advised Mr. Johnston of his right to counsel, which was declined. Mr. Johnston was released on a promise to appear. Constable Verspeek drove Mr. Johnston to his residence, just north of Portage la Prairie. [ 10 ] On cross-examination, Constable Verspeek confirmed that Mr.

Johnston was very cooperative and that his dealings with Mr. Johnston were brief. He has only one page of notes and no details about their conversation. The Offence: Section 259(4) of the Criminal Code [ 11 ] Section 259(4) reads as follows: “Every offender who operates a motor vehicle, ....in Canada while disqualified from doing so, other than an offender who is registered in an alcohol ignition interlock device program established under the law of the province in which the offender resides and who complies with the conditions of the program,

(

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or (

b) is guilty of an offence punishable on

summary conviction.” [ 12 ] Accordingly, if a person is legally disqualified from operating a motor vehicle, but is, at the time, registered in an alcohol ignition interlock device program and is complying with the conditions of that program, he is then, in fact, not committing an offence under s. 259(4) . The registration in the program and compliance with conditions of that program operate to exempt an otherwise disqualified driver from offending under s. 259(4). Positions of the Parties [ 13 ] The Crown says it has proved the commission of the offence charged by Mr. Johnston.

Indeed the evidence establishes beyond a reasonable doubt that: • Mr. Johnston was operating a motor vehicle in Canada on September 4, 2010; • On September 4, 2010, he was legally disqualified from operating a motor vehicle, pursuant to the Order of Prohibition; and • On September 4, 2010, Mr. Johnston had knowledge of his disqualification. [ 14 ] Defence counsel does not dispute that the Crown has proved those elements of the offence. Indeed, on the evidence provided, I find beyond a reasonable doubt that that is the case. [ 15 ] But, defence counsel says that in order to prove Mr.

Johnston committed an offence contrary to s. 259(4) of the Criminal Code , the Crown must also prove, beyond a reasonable doubt, that on September 4, 2010, when Mr. Johnston was operating a motor vehicle while being legally disqualified from doing so, he did not have an alcohol ignition interlock device installed in the vehicle he was operating. [ 16 ] There was no evidence at all as to whether Mr.

Johnston was or was not registered in an alcohol ignition device program, or as to whether or not he was complying with conditions of such a program. [ 17 ] The Crown argues, in reply, that the onus to establish an exemption to being prohibited from driving, by being registered in an alcohol ignition interlock device program, is on an accused. The Crown says that Mr. Johnston has not met that onus.

The Issue [ 18 ] In order to prove an offence under s. 259(4), does the Crown have the onus to prove beyond a reasonable doubt that a person who is operating a motor vehicle while legally prohibited from doing so, is not registered in an alcohol ignition interlock device program? Or, is the onus to prove registration in such a program and compliance with its conditions on an accused who wishes to claim the benefit of the exemption? The Law [ 19 ] Defence counsel’s argument is a technical legal one, based on the wording of s. 259(4).

Defence counsel says the onus to prove the exemption does not exist is on the Crown, because first, there is no wording within s. 259(4) itself that specifically puts that onus on an accused, and second, because there is no provision in any other

section of the Criminal Code that does so. [ 20 ] In 2009, Parliament added to the text of s. 259(4) the wording that constitutes the exemption. Defence counsel says that if Parliament intended the onus to prove the exemption to be on an accused, it would have said so in that section. [ 21 ] Defence counsel points to certain offence sections in the Criminal Code which do contain wording that specifically puts proof of an exemption, excuse or rebuttal of a presumption on an accused. [ 22 ] One example is the offence of breaking and entering a place with intent to commit an indictable offence described in s. 348.

Section 348(2) provides that, “in the absence of evidence to the contrary”, evidence that an accused broke and entered a place is evidence that he did so with intent to commit an indictable offence therein. If an accused wishes to prove that, in breaking and entering a place, he did not have the intent to commit an indictable offence, the onus is on him to lead evidence to the contrary to prove that his intention was something else. [ 23 ] Another example is the offence of possession of a break-in instrument set out in s. 351. That

section contains a presumption that a person who has an instrument that is suitable for breaking into a place, under circumstances that give rise to a reasonable inference that the instrument has, or was intended to be used for such a purpose, is guilty of an offence “without lawful excuse, the proof of which lies on them”.

So, if an accused who had a break-in instrument wants to be acquitted of the offence on the basis he had the instrument for a different purpose, it is up to the accused to prove the different purpose for which he had it. [ 24 ] Indeed, there are no words within s. 259(4) that specifically put the onus on an accused to prove he is registered in an alcohol ignition interlock device program when he is driving and is legally disqualified from doing so, in order to be exempted from that disqualification. [ 25 ] Defence counsel also points to certain sections in the Criminal Code which apply to series of offences of a particular type, and put the onus on an accused to prove facts that may lawfully exempt him from conduct that would otherwise constitute an offence.

An example of such a

section is s. 117.11. That

section provides that, as to offences under sections 89, 90, 91, 93, 97, 101, 104, and 105 (all of which are weapons offences that may be excused if a person has an authorization, licence or registration certificate): “the onus is on the accused to prove that the person is the holder of the authorization, licence or registration certificate.”

[ 26 ] Defence counsel in this case argues that there is no similar

section of broad application, nor indeed any

section in the Criminal Code , that puts the onus on an accused to prove he is registered in an alcohol ignition interlock device program at the time he is found driving while disqualified in order to claim the benefit of the exemption. [ 27 ] In fact, however, there is a general

section in the Criminal Code that applies to offences, in certain proceedings, and which does put the onus of proving a lawful excuse or exemption on an accused. That is section 794(2) of the Criminal Code . [ 28 ] Section 794 (2) of the Criminal Code provides: “The burden of proving that an exception, exemption, proviso, excuse or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the exception, exemption, proviso, excuse or qualification does not operate in favour of the defendant whether or not it is set out in the information”. [ 29 ] This

section is in

Part XXVII of the Criminal Code , which applies to proceedings that are punishable on

summary conviction. The offence under s. 259(4) is a hybrid offence. Section 34(1) of the

Interpretation Act , R.S.C. 1985, c. I-21 provides that hybrid offences are “indictable” until the prosecution elects to proceed by

summary conviction. [ 30 ] In this case, the Crown elected to proceed summarily. Accordingly,

Part XXVII, which includes s. 794(2) , applies to the trial of this matter. If Mr. Johnston wants to rely on the exemption prescribed by law that would permit him to lawfully operate a motor vehicle while otherwise legally prohibited from doing so, the onus of proving that exemption is on Mr. Johnston. The Crown is not required to prove that the potential exception or qualification which could operate in favour of Mr. Johnston, did not exist. Decision [ 31 ] The Crown has proved the required elements of the offence beyond a reasonable doubt. Mr.

Johnston did not prove facts that would give him the benefit of the exemption in s. 259(4). Accordingly, I find Mr. Johnston guilty of the offence as charged, and convict him. Original signed by: C. Carlson, P.J.